Introduction

According to Prime Minister Najib and his predecessors, Malaysia's culturally diverse population is the main reason additional restrictions have consistently been placed on the population's civil liberties. Thus, under the banner of “national security”, the government limits freedom of speech to safeguard race relations and to ensure national stability. Further, while democracy as a political ideal is still sought after, restrictions are imposed on political processes to protect other fundamental values. Unlike the West, it is not so much the restriction of freedom of speech that is being questioned in Malaysia but the government's domination of the channels of political expression which it uses to weaken the opposition and eliminate criticism. Thus, the main problem in Malaysia lies in the ruling government's willingness to exploit the country's fragile political situation for its own ends by routinely suppressing dissent and criticism from political opposition, non-governmental organizations (NGOs), and the public.

However, Prime Minister Najib has rebuffed such claims, saying, on the contrary, his government is open to criticism. While denouncing opposition leaders and foreigners, whom he blamed for spreading falsehoods and fake news, Najib said that the media has a duty to:

Najib even argued that “free speech is thriving in Malaysia”, compared to other nations in the region, before going on to blame the false and fake news tyrannizing social media now plaguing the country.

Introduction

Malaysia is a state that embraces communitarianism. Abdullah Ahmad Badawi (2006, p. 47), former prime minister of Malaysia, is critical of the Western values of individualism and once urged the West to learn about the Muslim world because in his view, Muslims see themselves ideally as a collective ummah, notwithstanding the occasional disunity among Muslims countries. Malaysia is also a multireligious society prone to inter-and intra-group conflicts if the relations between and within races are not handled and managed well.

From the debate of religious expression, a communitarian approach to speech regulation where the curtailment of a speech and the consequent loss of autonomy are considered less problematic. In a communitarian society like Malaysia, the state is not neutral between conceptions of the good life, but seeks to promote a substantive version of the “common good” and actively strives to create the public and private virtues needed for society to attain that end (Sandel 1982; Taylor 1985; Walzer 1983). Communitarians perceive individuals as having social characters grounded in the communities in which they live (McIntyre 1981). The good of an individual is not conceivable unless understood within some broader views of the good of the community. For communitarians, rules of civility found in the common law or in statutes regulating public morals, express dominant community norms and thus identity. Restraints on offensive and racist expressions can thus be cast and defended as the product of majoritarian rule-making that reflects prevailing norms such as tolerance and the equal worth of individuals and are enforced for the good of the whole community. Here, the protection of religious feeling may be prioritized over the value of democratic legitimacy, or these legitimacy concerns may simply be seen as a non-issue and ignored altogether (Cram 2009, p. 329).

Those who called for treating religion distinctively remind us that in religion, speech plays a unique role by connecting a person to God positively (prayer) or negatively (blasphemy). It is not “just an opinion”. Moreover, religious expression, such as prayer, is often a communal act and thus the community has a direct stake in the content of the speech.

Introduction

Freedom of expression is a fundamental liberty that all modern states should have in their constitutions and implement in the society. But freedom of expression is not absolute even to the defenders of the right. There is a heated debate in identifying the kinds of expressions that warrant constitutional protection. It is rather ironic that some staunch defenders of free expression deny certain other practices including religious expression. Gregory P. Magarian (2010) explains that there are arguments for normative constraints on religious argument and the translation imperative on the ground that religious arguments threaten liberal democracy. They posit two distinctive sorts of danger. First, they contend that religious beliefs cannot provide adequate justifications for coercive governmental actions in conditions of democratic pluralism. Members of a liberal democratic political community should not offer religious arguments in public debate because such arguments by definition urge improper grounds for government action. Any coercion based on religious arguments is unfair to non-believers, because such coercion denies non-believers equal respect and full and fair access to the process of political decision-making (Audi 1989, pp. 259–76; Greene 1993, pp. 1611–33). Second, religious arguments undermine public political debate, and thus threaten liberal democracy, by fostering social and political instability. Religious arguments, on the restrictive theorists’ account, carry a distinctive capacity to inspire intolerance of opposing political viewpoints (Audi 1997, p. 5; Rorty 1994, pp. 1–6; Marshall 1993, pp. 843–58; Sullivan 1992, pp. 195–99).

In contrast, some theorists argue that secularism poses a greater threat to liberal democracy than religion. Some compare what they portray as overblown claims of religion's divisiveness to the genuine divisiveness of political advocacy by or for historically disadvantaged racial and ethnic groups (McConnell 1999, pp. 639–48). First, they reject the restrictive concern that leads to religious arguments in public political debate denying non-believers equal respect and regard by underwriting religious justifications for coercive government actions. These theorists maintain that whatever features of insularity or exceptionalism might cause certain religious arguments to alienate non-believers and are equally likely to cause certain secular arguments to alienate believers or others. In any event, they contend that religious arguments in public political debate do not dictate policy outcomes but simply make “one contribution among others in a debate about how political power is to be used” (Alexander 1993, pp. 775–76; Waldron 1993, pp. 817–29).

Introduction

Considerable restrictions over certain types of religious expression practices in Malaysia imply the State's subtler and consistent intention not only to maintain racial and religious harmony within the country's multiethnic society, but also ultimately to protect the sanctity of Islam. Safeguarding the primacy of Islam as the official religion of the Federation serves as raison d’etre for the Malaysian government and state-religious authorities to carry out Islamization policies and programmes in which Islamic values, principles, laws and systems are integrated into every aspect of national life.

Within the broader context of domestic political landscape, the impetus for Islamization coincided with the deliberate tactical political measures employed by the UMNO-led ruling government to continue to remain in power amidst the background of burgeoning socio-political climate oriented towards Islamic primacy and conservatism which emerged since the 1970s. Hence, this chapter explores and examines the characteristics of state-driven Islamization policy in Malaysia and its historical narrative development. Greater attention will also be paid to the driving factors of and socio-politico ramifications arising from this policy. An understanding of the government's intents, rising Islamic revivalism and the existing national constitutional and legislative framework offer some insights into why the State acted in such ways.

Historical and Contemporary Background of Islamization Policy: An Overview

The origin of Islamization policy in Malaysia can be traced back to the early 1960s. Nevertheless, historical accounts of the early period following the post-independence Malaya reveal that the signs of Islamization process were already visible. The country's first Prime Minister Tunku Abdul Rahman paved the way by establishing the Muslim Welfare Organisation of Malaysia (PERKIM: Persatuan Kebajikan Islam Malaysia). Since its establishment in 1960, PERKIM has been a “non-partisan” da’wah organization entrusted to care for recent converts to Islam and to educate the Muslims about Islam. Even so, it was during the period between the 1970s and the 1980s that the policy had gained impetus with the steadily revival of political Islamist movement in the country. During this period, social, legal and political Islamization process in Malaysia coincided and, to a significant extent, was influenced by a landmark of geopolitical events unfolded outside the country—the Iranian Revolution of 1979–82 and revivalism of conservative Islamism in sub-Indian continent.

Islamic religious expression takes various forms globally from peaceful piety-oriented ones to the most brutal and violent ones.

The September 11 attack in New York has come to be viewed as the most violent public Islamic religious expression that led to the development of intense Islamophobia globally. It was subsequently made more intense by continuous Islamic jihadist attacks conducted in various parts of the world, from the United Kingdom to Chechnya, from Bali to Colombo. When videos of the beheadings of innocent individuals by the Islamic State and the Levant (ISIL) of the Middle East were shown on the Internet, the whole world was shocked and bewildered as to how much more violent Islam could become. Not surprisingly, thereafter, hatred towards Islam came to be generalized and embedded in the negative perceptions and narratives of billions throughout the world.

The majority of Muslims themselves could not provide any explanation or rationale to these abhorrence violent religious expressions. They could not give any credible reason and even if they could, most of them sounded weak and defensive, even evasive.

When President Barrack Obama delivered his speech in Cairo on 4 June 2009 on “the new beginning between the United States and Muslims around the world, one based on mutual interest and mutual respect … by expanding partnerships in areas like education, economic development, science and technology, and health …”, the world paused for a moment, with some segments of the Muslim and non-Muslim populace offering euphoric responses.

When Obama addressed the issue of economic development and opportunity, he emphasized how human progress cannot be denied, in spite of the crisis faced by the world, including among Muslim communities across the globe. He then specifically referred to “the astonishing progress within Muslim-majority countries from Kuala Lumpur to Dubai” based on innovation and modernization whilst enjoying peace, prosperity, progress, and political stability.

It could be argued that the gist of Obama's speech is that Islamic religious expression throughout history has been intellectually positive. He stressed on the peaceful manner of the expression that benefitted human civilization. Peaceful Islamic religious expression has continuously dominated the history of Islam that, in turn, has enabled it to contribute to world civilizations in the longue durée term.

Religious Expression in Perspective

Freedom of expression is a fundamental liberty enshrined predominantly in the constitution of modern Western secular states, with every individual, regardless of his or her ethnicity, socio-economic standing, and religious belief, guaranteed the right to exercise such freedom. Setting this preconceived notion aside, practical implementation of freedom of expression is not totally absolute even to the staunch defenders of human rights. There is an ongoing debate and controversy surrounding the types and substances of the said expressions that warrant constitutional protection. Moreover, the extents and impacts of freedom of expression remain a contentious and divisive issue in many liberal societies. It is not an exaggeration to claim that considerable numbers of advocators of free expression who are willing to support certain controversial practices, including pornography and hate speech, stopped short of recognizing other practices, most notably religious expression. There is no doubt that the possibility of reaching unanimous consensus on this issue amongst civil society groups and activists is remote, albeit one should take note that religious freedom continues to be a dominant subject in public discourse over the last century. In relation to this, the issue concerned may also be examined from the perspective of whether religious expression would somehow inflict or affect political instability or dynamism in bringing political transformation in a country. Therefore, this book will analyse these debates from the context of religious expression in Malaysia.

It is argued that the ultimate goal of safeguarding racial and religious sensibilities continues to be the main barrier to exercising unhindered practice of religious expression in Malaysia. In fact, there is a tendency (and as often the case) for the state authority to exert strict and sometimes excessive legal and political control over the media, prohibiting any forms of provocative or offensive expressions that may harm religious sensitivity of groups or communities from being cited or disseminated in the country. Notwithstanding Islam's official status under the Federal Constitution (hereafter “Constitution”), publications or circulation of articles, including editorial pieces and public opinions, that may deemed offensive to Islam and other religious believers either, intentionally or otherwise, are strictly prohibited. No local media in the country, including those operated by the opposition parties, are exempted from complying with this policy directive.

Introduction

This chapter explores the link between extreme religious expression and radicalization, which can lead to acts of terrorism. There is no doubt that religious expression is essential for any religion, including Islam. However, religious expression can also be detrimental if it is manipulated for violent purposes. It can radicalize innocent people into extremists for certain illegitimate and illegal causes. Article 20 (2) of the International Covenant on Civil and Political Rights (ICCPR or “the Covenant”) codifies the duty of the state to prohibit advocacy of religious hatred and to provide assistance in resolving these difficulties (Temperman 2011, p. 109). However, this chapter will explore further than religious hatred expression.

In the UK parliamentary debate on 17 January 2006, the government paid attention to the role of free speech in propagating violent radicalization:

Sara Savage and Jose Liht (2009, p. 504) concur with the UK government that speech that explicitly incites racial or religious hatred or glorifies or incites terrorism rights comes under the authority of the government, policing, and legislative bodies. In other words, any attempt to radicalize people for the purpose of luring them into terrorism are illegal and will be dealt with by the authority. As announced in Queen Elizabeth's speech on 18 May 2016, the UK “Counter-Extremism and Safeguarding Bill” is expected to codify the definition of extremism identified in “vocal or active opposition to fundamental British values including democracy, the rule of law, individual liberty, mutual respect and tolerance of different faiths and beliefs, as well as calling for the deaths of members of the armed forces” (Shepherd 2017, p. 63). The Bill also imposes a range of mainly civil measures directed towards eliminating allegedly dangerous extremist speech from public dialogue.

Introduction

There is an argument that the right to free expression can be potentially used to stir national security. Former Prime Minister of Malaysia, Najib Tun Razak admitted that race and religious issues are sensitive in Malaysia, and stressed that “(We need) political management (which) includes race relations. If we can refrain from uttering words or committing acts which can offend other races, then temperature-raising incidents can be avoided” (The Star 2010, p. 4). In objection, Anwar Ibrahim, the main opposition leader back then, implied that the Barisan Nasional (BN) government, led by the United Malays National Organisation (UMNO) as the most dominant political party in the coalition, was behind the tensions. He argued that “This is the last hope—to incite racial and religious sentiments to cling to power … immediately since the disastrous defeat in the March 2008 election, they have been fanning this” (Mydans 2010, p. 4). It seems ironic when Malaysia has Article 10 of the Federal Constitution that protects people's right to free expression and many laws such as the Sedition Act (SA) and Penal Code against religious and racial hatred but hate speech is still being exploited to further the political agenda and interests of certain political groups and parties. This raises a question: can we curb free expression for national security in Malaysia?

One more crucial issue, which needs to be addressed, is on the restrictive laws which are essential for political stability, racial harmony and economic prosperity. Are these laws merely used as tools for the government to cling to power and restrict any political contestation and people's mobilization against it? So far, there have been mixed responses on this issue and the debate is worldwide. The government argues in favour of the restrictive laws in sustaining racial and religious harmony in Malaysia. This chapter will argue about the processes in implementing freedom of expression in Malaysia.

Freedom of Expression in Malaysia

According to Andrew Tan (2004), national security in Malaysia has several objectives, in particular:

• 1. Preserving the Federal Constitution, including the position of the Malay rulers, Islam as the religion of the Federation, the special rights of the Malays in maintaining Malay political supremacy, and the legitimate rights of the other races.

• 2. Protecting national unity and racial harmony in realization that any internal ethnic conflict would be detrimental.

Introduction

This book examines the Islamization policy and the roles of Islamic bureaucracy in enforcing the policy of religious expression. Overall, religious expression in Malaysia is limited to the practices allowed by the Sunni doctrine. As Islam is the religion of the Federation and the jurisdiction of Islam is under the state authority, the Islamic bureaucracy has the authority to interpret Islam. In Western Liberals’ perspective, theoretically there are two schools of thought imposed upon religious expression—one is very hostile to religious expression because their intention is to protect the non-believers, and the other is open to all views including religious expression. In Malaysia, the societal belief, constitution and legislation must subscribe to Sunni beliefs even though this is not mentioned at all in the Federal Constitution, but is mentioned in the state's Islamic law. Thus, Chapter 1 traces the historical and contemporary background of freedom of expression in Malaysia. As freedom of expression is enshrined under Article 10 of the Federal Constitution, there have been many restrictions imposed against that freedom which were sometimes based on religious arguments and practices. No doubt that the right to legitimate religious expression is also protected by the Federal Constitution, but not hate speech.

Chapter 2 outlines the Islamization policy which was started in the 1960s but became the official policy of the country in the 1980s during the administration of Prime Minister Mahathir Mohamad. During this period, several permanent federal and state religious bodies, such as JAKIM and Syariah courts, were established to promote Islam. In fact, Mahathir also introduced Islamic banking, securities, and insurance laws. Besides, he attempted to increase the power of Islamic legal authorities in the Federal Constitution. Thus, Mahathir's Islamization policy was called the Inculcation of Islamic Values in Administration. This was continued by the policies of Mahathir's successors—Abdullah Ahmad Badawi's Islam Hadhari and Najib Razak's Wasatiyyah.

Through these policies, the government provided support for the expansion of the Islamization policy. Islamization would not be successful without the human capital produced by the government to administer the policies. Thus, many Islamic education institutions were established to offer courses in Islamic studies and Islamic laws.

THE LOT OF the labour immigrant is seldom a happy one, today or a century ago. For many of those who travelled from China and India to work in the tin mines or rubber estates in British Malaya, life was far from easy in the period between the two world wars.

To be sure, the whole peninsula underwent tremendous changes in political, economic, demographic and ethnic dimensions during those years. The tin industry that had brought so many to Malaya's shores with its promises of wealth experienced its share of booms and busts, as did the rubber industry. As a whole, the urban population in Malaya grew from 22.7 per cent before the First World War to 35.1 per cent after the Second. This made it the most urbanized place in Asia outside of Japan.

ORGANIZING LABOUR

While British interest in the Malay Peninsula had been strategic in the beginning, by the twentieth century, use of land for rubber production and the mining of tin had become their major economic concerns. These industries formed the basis of the colonial Malayan economy, governed by an administrative system created to provide it with stability and profit. Where labour was concerned, adjustability to shifts in demand as well as sustained low and stable wages were key considerations for the authorities as well as the employers.

In July 1959, just before elections took place, it was announced by the respected New York publication Pick's Currency Year that Malaya was Asia's wealthiest nation. That conclusion was drawn based on “circulation of currency per head of population”. Coming at 24th spot after 23 western countries, Malaya was classed as “moderately wealthy”, just a nose ahead of Hong Kong, and far ahead of Japan, Siam and Ceylon. While such a ranking may not say very much about the socioeconomic situation experienced by the population at large, it does commend Malaya's new government for carrying out a smooth transition in the finances of the country.

Much credit should be given to its finance minister for the achievement. In fact, for this and other contributions to the new nation, Hau-Shik was granted the KBE (Knight Commander of the British Empire) in 1957, for which he was entitled to use “Sir” before his name, and then at the second anniversary of Merdeka, in 1959, just before he left politics, he was awarded the SMN (Sri Maharaja Mangku Negara), which carried the title of “Tun”. Indeed, one could say that the conferment of the latter title signalled the end of his career as a politician, a career he was drawn into more by circumstances than by choice.

The ranking by Pick's also suggests that Malaya was in a healthy enough economic state as it entered the turbulent 1960s, although the election results of 1959 did show that there was much unrest and that the Alliance did not stand on as solid foundations as might have been assumed by the British.

But then, despite the political rhetoric, the founding of Malaya should not be seen as an endgame, neither for the retreating colonialist nor for the leaders of the new nation. The problem of Singapore and the northern Borneo territories still had to be solved, and any solution would require the Federation of Malaya to function as a pillar for it.